Stephen Bainbridge's Journal of Law, Religion, Politics, and Culture

Books

01/02/2019

I've never met Harvard law professor Adrian Vermeule or read much of his (reportedly outstanding) legal scholarship. But when I heard a few years ago that he had converted to Roman Catholicism, I began following his Twitter feed and reading his essays on politics and religion. In short order, I became a fan.

So when I bought Mind, Heart, and Soul: Intellectuals and the Path to Rome (edited by Robert P George and J.J. Snell), which offers "the stories of sixteen converts [to Roman Catholicism], each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church," I turned immediately to Adrian's chapter. It's interesting, provocative, but sadly short.

In some ways Adrian's story resonated with me, but in some ways my own conversion story is very different

Adrian was a convert from Episcopalianism. I came to Rome from a sort of generic Protestantism.[1]

Adrian fell away from the faith in college and eventually returned Ito it as an adult, only to find that the Episcopal Church had fallen into the hands of "herterodox forces."

Heterodoxy is part of my story too. In the years immediately before my conversion, I had attended Presbyterian churches. During the 1990s, of course, the PCUSA was riven with ugly disputes over social issues, especially sexual ones. The PCUSA leadership was increasingly captured by social justice warriors whose agenda seemed to be driven by progressive political policies rather than theology. That attitude increasingly trickled down to the local churches in my area, where I heard a lot more sermons on issues like race, sexuality, and the evils of the Israeli occupation of the West Bank rather than sin and salvation. Eventually, enough was enough.

Back to Adrian's interview:

On what legal fronts do you find the most hope for influencing the culture away from the “culture of death” of materialism and nihilism we seem to be gradually embracing?

I put little stock or hope or faith in law. It is a tool that may be put to good uses or bad. In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles, so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.

Right.

Finally, an interesting observation:

As for influences, there were many .... But behind and above all those who helped me along the way, there stood a great Lady.

Did you experience any kind of mystical or possibly supernatural signs or occurrences relating to your conversion?

Let me refer back to the end of the previous answer and leave it at that.

I assume the reference is to Mary. And now for a personal confession: Most of the Catholic doctrines as to which I have the greatest doubts relate to Mary. To be sure, the Catholic theology of Mary is far more complex and nuanced than the caricature I learned as a Protestant. But nevertheless I simply don't have the emotional commitment to Marian devotion that so many Catholics seem to have. And that devotion all too often seems to obscure the necessary focus on Christ.

Put another way, the Mother of God is undoubtedly an important figure, but God the Son is orders of magnitude more important. I see no scriptural basis for the theological claim that she collaborated in Christ's work of salvation. To the contrary, calling her co-mediatrix and co-redemptrix smacks of matriarchal paganism.

So am I a cafeteria Catholic on this central set of issues? I don't think so. I am perfectly happy to take Immaculate Conception and the Assumption on faith. I'm prepared to venerate Mary and to request her intercession. I'm simply suggesting that Mariology must be understood as Christ-centric and acknowledging -- even confessing -- that Mary plays a small role in my personal faith walk.

I take some comfort from the fact that one of my great heroes, John Henry Newman, acknowledged that he had difficulty adopting some Catholic practices.

What's striking to me, however, is how many of my fellow converts who are interviewed in "Mind, Heart, and Soul" embrace Marian devotion:

Michael Ward:

Marian devotions were foreign to me when I first swam the Tiber, but they quickly ceased to be alien. Now I not only understand and accept them but find the Marian dimensions of Catholic piety to be extremely helpful. I would put Marian devotions a close third, after daily Mass and frequent confession, in a list of the things I have found most beneficial to my spiritual regimen since becoming a Catholic.

Though now a Catholic, Pecknold had no personal Marian devotion at this time. “I knew that Catholics had a devotion to Mary, and I knew theologically in my head why Mary mattered. I could even tell you things that were important about the doctrine of the Immaculate Conception. I could tell you various things, I could probably teach a course.” But as for a personal Marianism, “I didn’t understand that.”

Yet when he went into Memorial Chapel and approached the shrine to Mary to pray about the two jobs, suddenly he felt that the eyes of the icon of Mary were on him, staying with him as he moved. He knelt down, prayed the Hail Mary, and asked for Our Lady’s help and guidance, whatever offers might come.

What surprised us was the fervor and strength of Marian piety. It took us a while to understand how important this was. We decided to visit some Marian shrines, and over the years, we visited Lourdes, Fatima, Knock, Guadalupe, Czestochowa, Banneux, as well as many churches and monasteries connected with Mary. The Rosary started to appeal to us when we realized how Christ-centered it is, and we started to pray the Rosary even before we were received into the Church.

I'm reading with great interest Mind, Heart, and Soul: Intellectuals and the Path to Rome (edited by Robert P George and J.J. Snell), which offers "the stories of sixteen converts [to Roman Catholicism], each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church."

As an adult convert to Catholicism from Evangelical Protestantism, I'm always fascinated by how other people came to the same decision. It turns out, of course, that there are many roads to Rome. As the saying goes, God works in mysterious ways, tailored to each of us individually, which is apparent from George and Snell observation that in the introduction:

For many, although certainly not all, converts entering the Catholic Church as adults, whether from another Christian community, another religion, or no faith at all, the Catholic intellectual tradition was experienced as part of the struggle to come home. Some turned to the Patristics for guidance, others to the Scholastics, yet others to the mystical or spiritual authors. For some, no one period or figure stands out as much as the entire “symphony” of truth found in the Catholic traditions of music, poetry, art, theology, literature, and moral philosophy.

Personally, I came to Rome not by any of those routes, but by reading Michael Novak and Pope John Paul II's encyclicals on work and the economy.

I’ve spent most of my life in school. Kindergarten. Twelve years of secondary education. Four years of college. Five years of graduate and law school. Three brief years as a law clerk and attorney in private practice. And now over thirty years as a law professor.

At the risk of sounding pretentious (a risk I fear I take all too often), I have lived the life of the mind. Most of my time has been spent reading, thinking, and writing. I spend my days engaged not just with legal materials, but also with social sciences, especially economics and finance. After all, I teach corporate law and, as I tell my students, you can’t understand corporate law or advise your clients unless you understand business.

So, I’ve grappled with questions like: Why do corporations have a board of directors at the top instead of a single executive? Why do courts usually defer to the decisions made by that board of directors absent fraud or self-dealing? Why do we prohibit insider trading? And so on.

Early in my academic career I began to wonder whether my faith spoke to those sorts of issues.

Immediately, however, I bumped into what Mark Noll—a well-known and highly respected academic historian and leading Christian scholar—called “The Scandal of the Evangelical Mind.”[1] Noll argued that:

What is true throughout the Christian world is true for American Christians: we who are in pietistic, generically evangelical, Baptist, fundamentalist, Restorationist, holiness, “Bible church,” megachurch, or Pentecostal traditions face special difficulties when putting the mind to use. Taken together, American evangelicals display many virtues and do many things well, but built-in barriers to careful and constructive thinking remain substantial.[2]

Accordingly, as Noll observed, “phrases like ‘first-rate Christian scholarship’ or ‘the Christian use of the mind,’ when these phrases sound like a call to backsliding for some in the churches and like a simple oxymoron for many in the broader world.”

The lack of first rate Christian scholarship was (and still is) especially pronounced in law and economics, the two academic disciplines in which I spend most of my time and upon which my own scholarship draws most heavily. True, there are some very fine Evangelical law professors. I am proud to count many as personal friends and hold them in the highest regards as both persons and intellectuals. But there are not many. And many (most?) teach in areas like constitutional law or jurisprudence. I can probably count the number doing serious work in the business law area on one hand. One of the best of them does mostly Japanese business law, which is way outside my bailiwick, and another does mainly bankruptcy and contract law.

Put bluntly, the life of the mind begins by reading, but I had nowhere to start. There simply was not a foundation of scholarship upon which to build.

But then I found Michael Novak. I only met Novak once and only corresponded with him a few times, but it is hard to think of anyone other than my friend and mentor the late Michael Dooley[3] who has had a bigger impact on my intellectual development. Novak's work provided a coherent Christian understanding of not just the economy, but the corporate form itself.

Reading Novak led me to Pope John Paul II's encyclicals on work and the economy. I already had developed a deep admiration for JPII's heroes life story and stand against communism, but now I found that he had profound insights into the issues with which I grappled on a regular basis.

I thus found in Catholicism an intellectually rich and vibrant foundation for my vocational life. In turn, that led to exploring the question of whether it might provide a similarly rich and vibrant foundation for my life as a Christian.

To sum up a multi-year process of discernment and internal struggle, the answer was yes. One of these days maybe I'll explore that process in detail.

12/16/2018

Is the state a fiduciary? For a growing number of scholars, the answer is yes. In fact, the idea that the state is a fiduciary to its citizens has a long pedigree – ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. A new edited volume of essays, “Fiduciary Government” (Cambridge University Press 2018, 342 pages, $145)explores the implications of the notion that the state is a fiduciary and develops new acounts of how fiduciary principles apply to representation; to officials and judges; to problems of legitimacy and political obligation; to positive rights; to the state itself; and to the history of ideas. The resulting volume should be of great interest to political theorists and public law scholars, to private fiduciary law scholars, and to students seeking an introduction to this new and increasingly relevant area of study. This volume should also be of interest to skeptics of the notion of fiduciary government, as it presents important critiques of fiduciary political theory.

One of the inscrutable ironies of the last two years is that a New York real-estate mogul and reality TV star has forced so many academics and intellectuals to rethink and redefine some basic terms. Among them: authoritarianism, liberalism and conservatism. In “The New Authoritarianism: Trump, Populism, and the Tyranny of Experts” (Polity, 115 pages, $12.95) Salvatore Babones, an American-born professor of sociology and social policy at the University of Sydney, doesn’t defend Mr. Trump or his administration. But he does suggest the Trump phenomenon may galvanize a revival of democratic self-rule. Mr. Babones, whose ideological affiliations remain a mystery to me, does not fear, as many American liberals do, that Mr. Trump is an “authoritarian” president. He believes, rather, that the president’s populism is a protest against a different kind of authoritarianism: the rule of unelected “experts.” American liberals speak unctuously about “democracy” and “democratic values,” but they have consistently substituted expert opinion for democratic decision-making. Whatever else this president does or doesn’t do, Mr. Babones thinks, his presidency has challenged that tendency at every point, and our politics will be more democratic and better off as a consequence.

12/10/2018

Regular readers will recall that Todd henderson and my book Outsourcing the Board: How Board Service Providers Can Improve Corporate Governance asks "why does the law require governance to be delivered through individual board members? While tracing the development of boards from quasi-political bodies through the current 'monitoring' role, we find the reasons for this requirement to be wanting. Instead, we propose that corporations be permitted to hire other business associations - known as 'Board Service Providers' or BSPs - to provide governance services. Just as corporations hire law firms, accounting firms, and consulting firms, so too should they be permitted to hire governance firms, a small change that will dramatically increase board accountability and enable governance to be delivered more efficiently.

As we recognize, there are a number of existing legal barriers that would have to be overcome. Keith Paul Bishop just flagged a few more. (A link to our book would have been nice.)

10/11/2018

In his new book, Outsourcing the Board: How Board Service Providers Can Improve Corporate Governance (Cambridge University Press), he and UCLA School of Law Professor Stephen M. Bainbridge propose giving corporations the option of hiring a new kind of firm, a Board Service Provider (BSP), to serve as their boards. Today, corporations hire law firms, accounting firms, and consulting firms to give them the expertise needed to run their highly complicated businesses. So why not a corporate governance firm?

“There is a whole literature that precedes us advocating for professional board members with standards and education,” Henderson said. “But even that plan has shortcomings because it focuses on the individual rather than on the entity. If there were firms that provided board services and that had employees with expertise in all the areas these corporations need, that would be much more efficient than 12 part-time people. The firm could hire all the experts they need and have them down the hall when information is needed.”

...

“Right now, all that most boards have time for is oversight, but a BSP could spend time on other things because it would be a deeper entity, it would employ all the people it needs, and therefore, could be in compliance at a lower cost,” Henderson observed.

He also explained that BSPs, with their teams of experts, could overcome other corporate problems, such as having to make decisions without full information from management.

09/14/2018

A work that is both engrossing and surprising….As we await the Supreme Court’s decision in the critical case of whether a business can decline to serve a customer based on its distaste for same-sex marriages, all citizens would do well to pick up a copy of We the Corporations to understand the full implications of what it decides. — Jonathan A. Knee (New York Times)

Much of the value of Winkler’s book lies in his elegant stitching together of 400 years of diverse cases, allowing us to feel the sweep and flow of history and the constantly shifting legal approaches to understanding this unusual entity — Blackstone’s ‘artificial person.’ Four hundred years is a lot of time, and Winkler does a wonderful job of finding illustrative details without drowning in them, and of giving each case enough attention to make it come alive…By nailing down the absurdities of the past, Winkler allows us to see how the future becomes more open. — Zephyr Teachout (New York Times Book Review)

'Are corporations people?' That’s the provocative question Winkler poses at the outset of his impressive, engaging new book. . . . [Winkler] begins in Colonial America and provides a forceful and highly readable account of what he convincingly describes as a 'long, and long overlooked, corporate rights movement.' — The National Book Review

An eye-opening account of how corporations became ‘persons’ entitled to constitutional rights and used those rights to impede efforts to regulate them in the interests of real people. — David Cole, author of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

An incisive account of the unlikely rise of an idea that has nearly turned American politics upside down. — Jill Lepore, author of The Secret History of Wonder Woman

This is a brilliant, beautifully written book on a topic affecting almost every area of law: how did corporations come to have rights under the Constitution? Professor Winkler carefully details this history from English law to the present, and the book is filled with new insights and information. Any future discussion of rights for corporations will be shaped by this wonderful book. — Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

Impressively thorough and wide-ranging. . . . Winkler employs an evocative, fast-paced storytelling style, making for an entertaining and enlightening book that will likely complicate the views of partisans on both sides of the issue. — Publishers Weekly, starred review

A chronicle of the steady, willful process by which corporations became people—until, that is, you try to sue them. . . . Maddening for those who care about matters constitutional and an important document in the ongoing struggle to undo Citizens United. — Kirkus Reviews

[A] timely, exciting book . . . . Constitutional law professor and legal commentator Winkler examines the history of the relationship between corporations and the Constitution, providing a field guide to the legal issues and an overview of a long-term corporate civil rights movement that employs techniques familiar from social justice movements. . . . Along the way, he presents a wide range of vividly drawn historical figures, bringing their philosophies, tactics, debates, and shenanigans to life while allowing readers to assess the ethics and implications of their work. — Sara Jorgensen (Booklist)

Fortunately, however, a working draft is available on SSRN: Kuntz, Thilo, Asset Partitioning, Limited Liability and Veil Piercing - Review Essay on Bainbridge/Henderson, Limited Liability (March 14, 2017). European Business Organization Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2949685

Here's the working draft's abstract:

One of the core features of modern corporate law is the partitioning of the corporation’s assets and the shareholders’ (private) assets affirmatively and defensively in the sense that the claims of a corporation’s creditors are prior to those of shareholders’ personal creditors with respect to corporate assets and that claims of the shareholders’ personal creditors have priority over those of corporate creditors with respect to shareholders’ private assets. The second principle is the rule of limited liability. What makes it special is that it may not be created by contract – or only under severe restrictions. Courts in many jurisdictions curtail the rule of limited liability by doctrines such as “piercing the corporate veil”, exposing shareholders to a creditor’s claim and therefore to personal liability for the corporation’s debts. The circumstances giving cause to such measures are not clear, however. Additionally, in historical perspective, combining business entities with defensive asset partitioning is not a self-evident maneuver; even modern scholars challenge the idea of limiting liability in general, at least vis-à-vis tort creditors. Stephen Bainbridge and M. Todd Henderson thus take up an important and timely topic with their book on limited liability and veil piercing. Considering the many aspects they discuss, their book provides a welcome chance not just to write a short review, but to take up some general issues of asset partitioning and veil piercing. This review essay, accepted for publication in the European Business Organization Law Review, runs the following course: After providing a historical perspective on limited liability in section II., section III. turns to its relationship with incorporation. Section IV. deals with the question why limited liability should be accepted at all, thus preparing the stage for a look at alternative approaches in section V.

And here's the conclusion from the final, as published version:

Bainbridge and Henderson’s book has a lot to offer for readers interested in limited liability and veil piercing. They provide a rich survey of the most important US literature in the field and add to the discussion by bringing new and interesting arguments to the table. Taking into account how long this debate has been going on and the sheer mass of contributions, this is by no means a small feat. Furthermore, that the authors try to provide a comparative view is a welcome and enriching move as it pushes the academic debate to a broader forum, showing the importance and fruitfulness of comparative approaches. Bainbridge and Henderson make a strong case for abolishing veil piercing, offering a whole package of arguments in favor of reform. Their treatment of veil piercing concepts, the work’s prime rib, is a rewarding read.

I am sure Todd will join me in thanking Professor Kuntz for providing such a detailed, thoughtful, and helpful analysis of our work.